Excerpt:criminal - cheating - sections 173, 207 a, 251 a, 291, 347 and 537 of criminal procedure code, 1898 and sections 120 b and 420 of indian penal code, 1860 - petitioner filed application against refusal to permit revision petition against committal order on basis of amount involved in cheating - order of committal passed by magistrate without following provisions of section 207 a is illegal - magistrate did not apply his mind to question whether it was necessary to examine witness referred in section 207 a (4) - section 207 a not complied - prejudice caused to petitioner - order of committal passed by magistrate liable to be quashed.
- - taking into consideration the seriousness of the criminal act, complained of, the learned magistrate would not be in a position to award adequate.....order(1) the petitioners, who were the original accused nos. 1 and 2, were charge-sheeted to the court of the city magistrate, ahmedabad. they were accused of offences punishable under sections 420-120b of the indian penal code. the case was instituted upon a police report. on 11th january, 1967, it was ascertained that copies of the police-papers, referred to in section 173 of the civil procedure code were furnished to both the accused and the case was adjourned to 12th january, 1967 for the statement and charge by the learned city magistrate, ahmedabad, mr. h. k. damani. on account of the sick-note of the defence advocate, the case was adjourned to 16th january, 1967 for the above said purpose. on that day, the learned city magistrate framed the charge, ex. 2 against the present.....

Judgment:ORDER

(1) The petitioners, who were the original accused Nos. 1 and 2, were charge-sheeted to the Court of the City Magistrate, Ahmedabad. They were accused of offences punishable under Sections 420-120B of the Indian Penal Code. The case was instituted upon a police report. On 11th January, 1967, it was ascertained that copies of the police-papers, referred to in Section 173 of the Civil Procedure Code were furnished to both the accused and the case was adjourned to 12th January, 1967 for the statement and charge by the learned City Magistrate, Ahmedabad, Mr. H. K. Damani. On account of the sick-note of the Defence advocate, the case was adjourned to 16th January, 1967 for the above said purpose. On that day, the learned City Magistrate framed the charge, Ex. 2 against the present petitioners for the aforesaid offences. The statements of the accused were recorded and the case was adjourned to 23rd January 1967 for evidence. On 23rd January, 1967, the petitioner No. 1, Bhikhabhai gave an application No. M/20 that one Suryakant Ashalal has filed a complaint against his Bhilchabhai wherein allegations have been made regarding the factum of a person having been cheated for an amount of Rs. 92,000/-. A private complaint is filed and the first information report has also been lodged with the police in regard to that very matter and the police case has been filed. One offender cannot be tried on the same facts in the two proceedings referred to above. A Civil Suit has also been filed for the alleged dues in regard to that amount. The said petitioners should, therefore, be acquitted. Another application No. M/21 was filed by the petitioners on the same day stating that a dispute arising in this Criminal Case and the Civil Case is the same and hence, this Criminal Case should not be proceeded with further, till the Civil Suit is decided. On that very day, the Police Prosecutor filed a report No. M/22, stating that the amount involved in cheating, was to the tune of Rs. 92,000/-. The charge has already been framed. Taking into consideration the seriousness of the Criminal Act, complained of, the learned Magistrate would not be in a position to award adequate punishment. He , therefore, prayed that the case should be committed to the Sessions Court for the trial of the offences in question. The learned Magistrate on 23rd January, 1967 adjourned the case to 30th January, 1967 for evidence. On 30th January 1967 he heard the advocates and adjourned the case to 31st January, 1967 for orders. On 31st January, he passed the committal order (Ex.4) which is the impugned order, and ordered that both the accused were committed to the City Sessions Court, Ahmedabad to stand trail for the offences punishable under Sections 420-120B of the Indian Penal Code. He rejected the two applications, filed by the petitioners, referred to above. Another application was filed on behalf of the petitioners to give time to them so that they can file a revision petition in regard to their prayer of staying the matter till the Civil Suit is decided. The application was rejected on the ground that the committal order has already been passed by the learned Magistrate. Being dissatisfied with the impugned order regarding the committal of the accused to the Sessions Court for trial, the petitioners have preferred the present application under Section 561A of Civil Procedure Code.

(2) Shri H. K. Thakore, the learned Advocate for the petitioner contended that it was evident that the learned City Magistrate had proceeded with the case by adopting the procedure prescribed for the trial of a warrant case. It is an admitted position that both the offences in question were triable by the learned City Magistrate. The procedure prescribed under S. 251A of the Criminal P. C. Was followed. Charge was accordingly framed after perusing the papers referred to, in Section 173 of the Civil Procedure Code. The case was adjourned for recording evidence after the charge was framed. The petitioner filed certain applications. The Police Prosecutor filed an application, that taking into consideration the amount involved, the learned Magistrate would not be in a position to award adequate punishment to the petitioners, if they are found guilty of the offences they are charged with Shri Thakore, the learned Advocate, appearing on behalf of the petitioners, conceded to the position that in view of the provisions of Section 347 of the Civil Procedure Code, the Magistrate is empowered to commit the caused to the Sessions Court for trail of the offences which are triable by the Magistrate if he his of opinion that he will not being a position to award adequate punishment. It would be done at any stage of the trial, but at the same time, the Magistrate has to commit the accused under the provisions therinbefore contained. He, therefore, contended that in case the Magistrate decides that he is not on position to award adequate punishment and the case requires to be committed to the Sessions Court, he has got to follow the provisions contained the Civil Procedure Code. If it is a case constituted otherwise then on a police report, the provisions contained under Section 208 to 213 have to be followed. The present case was a case instituted on a police report. He , therefore, urged that the learned Magistrate was bound to follow the provisions of Section 270A of the Civil Procedure Code prior to his making of an order of committing the accused to the Sessions Court for the trial of the offences in question. He also invited my attention to the provisions of Section 251A and the provisions of Section 207A to indicate the material difference that was found in these two provisions. He contended that in view of certain material difference, to which I will refer to , at a later stage, the petitioners would not get certain opportunities which they could have availed of , if the provisions of Section 207A has been followed. That would cause prejudice to the petitioners. The order of committal passed by the learned Magistrate without following the provisions of Section 207A and by his straightway making an order of committal, is illegal. It cannot be sustained in law. This illegality or even if it is found to be an irregularity, could not be cured by the provisions of Section 537 of the Civil Procedure Code, it was not necessary to show that such an irregularity resulted in the prejudice of the accused. He invited my attention to two decisions. Arunachalam Swami v. State of Bombay, AIR 1956 Bom 695 and Chhandamilal Jain v. State of Uttar Pradesh, AIR 1960 SC 41, in support of his argument and urged that the order of committal be quashed. In reply to this argument, the learned Government Pleader, Mr. Sompura contended that on a perusal of the provisions of Section 207A, sub-section (4) and sub-section (9) on which reliance has been placed mainly by the learned Advocate Mr. Thakore, it appears that no right is given to the accused. The Court has ben given a discretion to examine the witnesses referred to, in that section, if he is of opinion that they should be examined. In regard to the question of giving of a list of defence witnesses to be summoned, no prejudice would be caused to the accused as this Court can mend that matter by giving necessary directions to the Sessions Court to take the list of witnesses from the accused before a trial beings and to summon those witnesses.

(3) Before I advert to the arguments advanced on both the sides, it will be proper first to refer to the material section 347 of the Civil Procedure Code, which will be hereinafter to , as the Code. The material part of it runs as under:-

'347(1) if in any inquiry before a Magistrate, or in any trial before a Magistrate before signing judgment, it appears to him at any stage of the proceedings that the case is on which ought to be tried by the Court of Sessions or High Court, and if he is empowered to commit for trial, he shall commit the accused under the provisions hereinbefore contained.'

A perusal of the wordings of that section clearly indicates that the Magistrate is empowered to commit the accused even in a case where the trial has started, if at any stage of the proceedings, he is of opinion that the case is one which ought to be tried by the Court of Sessions. In the instant case, the Magistrate found that he will not be in taking into consideration the seriousness of the criminal Act, complained of , it being in respect of an amount of Rs. 92,000/-. It is, therefore, evident that the Magistrate could press into service the provisions contained in this section. But that power has to be exercised by following the provisions thereinbefore contained, meaning thereby, the provisions that are found in Chapter XVIII which relate to inquiry into the case triable by the Court of Session or the High Court.

(4) If we now compare the provisions of Section 251A, found in Chapter 21 of the Code, with the provisions of Section 207A found in Chapter 18, the material difference is found in regard to the procedure to be followed in the trail of warrant cases by the Magistrate and in the inquiry contemplated in Chapter 18. Sub-section (2) of section 251A of the Codes runs as under:-

'If, upon consideration of all the documents referred to in section 173 and making such examination, if any, of the caused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.'

Sub-section (3) of it states that:-

'If, upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in wiring a charge against the accused.'

It is, therefore, evident that in case tried as a warrant Case, the Magistrate can frame a charge after consideration of he documents referred to in Section 173 and the examination of the accused if any, being made, after giving an opportunity to the prosecution and the accused of being heard. It is not necessary for him to record any evidence or to consider whether the circumstances of the case required the recording of any evidence.

(5) Sub-section (2) of Section 207A of the Codes states that:

'If at any time before such date, the officer conducting the prosecution applies to the Magistrate to issue a process to compel the attendance of any witness or the production of any document or thing, the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so.'

It is a right given to the prosecution with which we are not concerned in the present case. Sub-section (4) of that section, in my opinion, is very material for our purposes. It runs as under:-

'The Magistrate shall then proceed to take the evidence of such persons, if any, as my be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the Magistrate is of opinion that it is necessary, in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also.'

That sub-section contemplates taking of evidence of eye-witnesses to the incident . it further contemplates taking of evidence of any other witnesses for the prosecution. If the Magistrate is of opinion, that it is necessary in the interests of justice to take such evidence. There is no such provision found in Section 251A. It is true that a Magistrate has to form an opinion whether it is necessary in the interests of justice to take the evidence of other witnesses for the prosecution. It is no doubt, left to a Magistrate, whether in the interests of justice, it is necessary to take evidence of such other witnesses. But it will be significant to note that the Magistrate has to use that discretion judiciously. He has to apply his mind and then form an opinion, whether the interests of justice demanded that anyother witness should be examined or not. It, therefore, clearly means that the accused will have a right to make a submission before the Court and will have an opportunity to persuade the Court that the interests of justice demanded taking of such evidence. In the instant case, if this order of committal is sustained, the consequence would be that these petitioners could not avail of that opportunity. They could well complain with a full justification that if these provisions had been followed, the present case was such that the interests of justice demanded examination of certain witnesses and if that had been done, possibly the Magistrate may not have found the case to be fit one for committing the accused to the Sessions Court for trial of the offences in question. It will be significant to note that in the instant case, when the Magistrate framed a charge, following the procedure prescribed in Section 251A, he may have found that he was in a position to award adequate punishment. At the time of framing that charge, he has to form that opinion. He framed the charge following those provisions which would indicate prima facie that at that stage, he did not feel that he would not be in a position to award adequate punishment. It does not transpire from the record of the case that any further development took place, which would indicate that the would not be in a position to award adequate punishment. The Police Prosecutor only filed a report in that behalf and heard for recording evidence, the Magistrate has passed the impugned order. I do not give much importance to that circumstance, but the accused can very well say that if the provisions contained in sub-section (4) of Section 207A are not followed, he lost an opportunity of persuading the Magistrate that the interests of justice demanded examination of other prosecution witnesses. It is true that it is not his right to compel the Magistrate to examine any such witnesses, but at the same time, law gives him am opportunity to make a submission before the Magistrate and to persuade him to exercise his powers referred to in that sub-section. Sub-section (5) of Section 207A, further states that:-

'The accused shall be at liberty to cross-examine the witnesses examined under sub-section (4) and in such case, the prosecutor may re-examine them.'

It, therefore, appears that if eye-witnesses to the incident are examined, as required under sub-section (4) of Section 207A , the accused has a right to cross-examine them. He can, therefore, bring on record the materials, which might reveal that there is no ground for committing the accused to the Sessions Court for trail. . . . . . .. . .. .. . .. . .

In a decision Kirpal Singh v. State of Uttar Pradesh, AIR 1965 SC 712, the Supreme Court has made the following pertinent observations, which can be referred to, with advantage at this stage:-

'Before the Code was amended by Act 26 of 1955, it was necessary for the Magistrate holding the inquiry to record the evidence of all the important witnesses. With a view to shorten delays in the proceeding preliminary to bringing the accused to trial, Legislature has by enacting Section 207A conferred a discretion upon the Magistrate in the matter of examination of witness not produced by the prosecutor. Exercise of that discretion must be judicial; it is not to be governed by any set rules or standards, but must be adjusted in the light of circumstances of the case.

The Magistrate is again not to be guided by the attitude of the prosecutor, it is the duty of the Magistrate to examine all such witnesses as may be produced by the prosecutors witnesses to the actual commission of the offences alleged, but his duty does not amend with such examination,. He must apply his mind to the documents referred to, in Section 173, and the testimony of witnesses, if any, produced by the prosecution and examine, and consider whether in the interest of justice it is necessary to record the evidence of other witnesses.

In inquiries relating to charges for serious offences like murder, normally the Magistrate should insist upon the examination of the principal witnesses to the actual commission of the offence. Failure to examine the witnesses may be justified only in exceptional cases. A Magistrate failing to examine witnesses to the actual commission of the offence because they are not produce, without considering whether it is necessary in the interest of justice to examine such witness fails in the discharge of his duties'

It is, therefore, evident that the law requires that the Magistrate should apply his mind and form an opinion whether it is necessary in the interests of justice to take the evidence of the witnesses even though those witnesses may not have been produced by the prosecution. The Court has to use its discretion judicially. In the instant case, if these provisions are not followed, the petitioners will lose this important right of theirs to urge and persuade the Court that the interests of justice demanded examination of such witnesses. There being no such provision in Section 251A of the Code, and there being such a provision in Section 207A of the Code. If the petitioners are not given an opportunity, they would unnecessarily be prejudiced. It will occasion of failure of justice. The material part of sub-section (6) of Section 207A of the Code runs as under:

'When the evidence referred to in sub-section (4) has been taken and the Magistrate has considered all the documents referred to, in Section 173 and has, if necessary examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such Magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such persons should be tried before himself or some other Magistrate in which case he shall proceed accordingly.'

That sub-section also indicates that after the evidence referred to in sub-section (4) has been taken and accused has been examined if necessary, for the purposes of enabling him to explain the circumstances appearing in the evidence against him and after hearing him and the prosecution, the Magistrate can discharge him, if there is no ground, for committing him to the sessions Court for trial,. Sub-section (7) of Section 207A of the Code indicates that: after considering such evidence taken and also documents referred to in Section 173 and examination of accused, if made, and after hearing the prosecution and accused, he can frame a charge and commit the accused for trial. Sub-section (9) of Section 207A of the Code states that the accused shall be required at once to give in, orally, or in writing a list of the persons, if any, whom he wishes to be summoned to given evidence on his trial:

'the Magistrate may, in his discretion, allow the accused to give in his list or any further list of witnesses at a subsequent time.'

That proviso clearly indicates that even after the charge is framed, though the accused had given a list of the persons whom he wishes to be summoned to given evidence on his trial, the Magistrate can give him a further opportunity at a subsequent time. But it is at his discretion. He is not bound to summon them. Sub-section (10) of Section 207A of the Codes states that:

'When the accused, on being required to give a list under sub-section (9), has declined to do so, or when he has given in such list, the Magistrate may make an order committing the accused for trial by the High Court or the Court of Sessions, as the case may be, and shall also record briefly the reasons for such commitment.'

Sub-section (11) states that:-

'When the accused has given in any list witnesses under sub-section (9) and has been committed for trial, the Magistrate shall summon the witnesses included in the list to appear before the Court to which the accused has been committed.'

It, therefore, clearly means that a Magistrate is bound to summon the witnesses included in such list, unless the Magistrate finds that the witness is included in the list for the purpose of vexation or delay or of defeating the ends of justice. Even in that case, he may required the accused to satisfy him that there are reasonable grounds for believing that the evidence of such witness is material and on his not satisfying him, he may refuse to summon the witnesses and he has to record reasons for such refusal or he may require him to deposit an amount for defraying expenses referred to in the latter part of that proviso before summoning witnesses. It is, therefore, evident that the accused has been given a right to give a list of the witnesses to be summoned. Obligation is case upon the Magistrate to require him to give a list. If such a list is given, the Magistrate is bound to summon the witnesses unless he finds that a particular witness is included in the list only for the purpose of vexation or delay or for defeating the ends of justice.

If we now refer t Section 291 of the Code, which finds place in Chapter 23, relating to trials before the High Courts, and the Courts of Sessions, we find that it states:

'The accused shall be allowed to examine any witness not previously named by him, if such witness is in attendance.'

It will, therefore, mean that if a particular witness is not included in the list referred to earlier, the accused has no right to get him summoned. He has a right to examine him only if present. The latter part of this Section 291 runs as under:

'But he shall not, except as provided in Sections (207A), 211 and 231, be entitled of right to have any witness summoned, other than the witnesses named in the list delivered to the Magistrate by whom he was committed for trial.'

It, therefore, clearly means that he has a right only to summon the witnesses, named in the list delivered to the Magistrate as provide in Section 207A. It, therefore, means that it is a valuable right. If the accused is deprived of that right, it could be without any hesitation said that it would prejudice him and would occasion a failure of justice. It is true that the Court may be persuaded to summon such witnesses, but that will depend upon the will or the discretion of the Court. The accused would not be in a position to avail of the right which he had, to summon the witnesses. In my opinion, therefore, by not following this particular provision also, there would be prejudice caused to the accused. Taking into consideration this vital difference between the provisions of Sections 207A and 251A of the Code and the prejudice that would be caused to the accused by not following the aforesaid provisions of Section 207A and by making a committal order straightway, the petitioners would be prejudiced and there would be an occasion for a failure of justice.

(6) In a case AIR 1956 Bom 695, it has been observed as under:-

'When the accused say that they have been deprived of their right of defence and of leading evidence under Section 207A, Civil Procedure Code, in one sense it is not a justifiable complaint because whatever evidence they have to lead, they can lead before the Court of Session. It is that Court in which they would be tried and it is in relation to that Court that the question has to be asked whether in their trial in the Court they have been deprive of any substantive right of defence or relief. Again the law is well settled that it is not open to the prosecution or to the police investigating an offence only to place before the Court, witnesses who support the prosecution so try, if there are other material witnesses who support the defence of the accused, it is equally the duty of the prosecution to a call them. Therefore, the situation would rarely arise whether a material witness who would support the defence would not be called by the prosecution under the provisions of section 207A itself. Further with regard to the right of the accused to call evidence, although there is no specific provision in Section 207A itself, it is obligatory upon the Court to summon a person if his evidence is necessary for the just decision of the case, and if the accused makes an application to call a particular witness and if that witness is a particular witness and if the witness is a material witness and it would help the Magistrate to come to a just decision then undoubtedly under Section 540 not only the Magistrate would have the discretion to call him, but there would be a duty case upon him to summon that witness and examine him.'

It has further observed therein that:

'The result of enacting section 207A, Civil Procedure Code, is that an order does not fall under section 215. Now, if section 215 is a limitation upon the power of the High Court then that limitation only applies to orders made under section 213. They do not apply to an order made under section 207A. Therefore, the ordinary power of the High Court to revise any order passed by a criminal Court subordinate to it or the power of the High Court under section 561A remains unaffected as far as the orders of commitment made under section 207A are concerned. Apart from these two sections, the accused has always the right to approach the High Court under Article 227 of the Constitution.'

These observations do indicate that this Court can exercise its inherent powers under section 561A of the Code to quash such order of committal.

(7) In a case Chhandamilal Jain v. State of Uttar Pradesh, AIR 1960 SC 41, the Supreme Court had to deal with a case where the committal order was made, no doubt, in a case instituted otherwise than on a police report and a Magistrate had exercised his powers under section 347 of the Civil Procedure Code. The instructive observations made therein are as under.

'It is open to a Magistrate to hold an inquiry from the beginning under Chapter XVIII in a case not exclusively triable by the Court of Session,. But the mere fact that the Magistrate has such power does not necessarily indicate to the accused that he is holding an inquiry under Chapter XVIII rather than a trial before himself. If the Magistrate intends to use his powers under section 207 and hold an inquiry from the beginning in a case not exclusively triable by the Court of Session, the only way in which the accused can know that he is holding an inquiry and not a trial is by the Magistrate informing the accused that he is holding an inquiry under Chapter XVIII and not a trial. If he fails to do so, the accused can reasonably conclude that a trial is being held.

The further observations made therein, which are material for our purposes, are as under: 'The words 'under the provisions hereinbefore contained' mean that if the Magistrate decides at some stage of the trial to commit the accused, he has to follow the provisions contained in Chapter XVIII. This of course does not mean that the Magistrate must begin over again from the beginning . All that he has to do when he decides that the case ought to be committed is to inform the accused and see that the provisions of Chapter XVIII are complied with so far as they have not been complied with upto the stage at which he decides that there ought to be a commitment. The procedure under Chapter XVIII is laid down in section 208 to 213 of the Code. It is necessary that the accused should know when the Magistrate makes up his mind to commit, so far their right under S. 208 to produce defence, if any, before commitment is made is safeguarded. If the accused is denied the opportunity of leading evidence which he has a right to do under section 208 the denial of such right is sufficient to cause prejudice to the accused and section 537 would have no application to such a case. The possibility that the accused may not have produced defence is asked by the Magistrate whether he would do so, is of no consequence.'

In view of this decision of the Supreme Court, it is quite clear that the Magistrate should comply with the provisions of chapter XVIII which have not been complied with upto the stage at which he decides that there ought to be a commitment. In the instant case, as stated earlier, before the charges was framed, the Magistrate did not apply his mind to a question whether it was necessary to examine witness referred to in sub-section (4) of S. 207A of the Code in the interests of justice or not. It is, therefore, evident that there is no question of any repetition of any stage. As stated earlier, the accused had a right to submit to the Magistrate and to persuade him b showing circumstance of the case that interests of justice demanded that such witnesses should be examined. Furthermore, the accused-petitioners would lose their right of summoning the witnesses as they were not required to give the list as contemplated in sub-section (9) of section 207A of the Code. A question of summoning witnesses, if they are not included in the list, would be at his volition. By not following these provisions, prejudice has been caused to the accused. By non-following of the provisions and making straight way the order of committal, there would be a prejudice caused to the accused and it would occasional failure of justice. I am, therefore, of opinion that it is a fit case for quashing the order of committal passed by the learned City Magistrate in its exercise of the inherent powers of this Court referred to section 561A of the Civil Procedure Code.

(8) The application is allowed. The order of committal passed against the petitioners committing them to the Sessions Court, Ahmedabad, for standing their trial is set aside and the Magistrate is directed to proceed with this case from the stage contemplated in sub-section (4) of S. 207A, to be tried by the Sessions Court. The petitioners are directed to appear before the City Magistrate, VII Court on or before 1st July, 1967 and the Magistrate, on their appearance, may pass an order for fresh bail bonds.